Obama Administration Skips First Senate Hearing on Gitmo in Five Years

3 years ago

There was no shortage of outrage at Wednesday’s Senate hearing on closing the detention facility at Guantánamo Bay. Both critics and supporters of the prison repeated well-rehearsed arguments about why keeping it open—or shutting it down—would harm the national security and American interests more broadly. Sen. Dick Durbin (D-IL), who chaired the Judiciary Committee panel, argued that “every day it remains open, Guantánamo prison weakens our alliances, inspires our enemies, and calls into question our commitment to human rights.” Sen. Ted Cruz (R-TX) countered that shuttering the facility would endanger the lives of Americans. “Until we are presented with a good, viable strategy for what to do with terrorists who would work night and day to murder innocent Americans,” Cruz said, “I have a hard time seeing how it is responsible to shut down our detention facilities and send these individuals home, where they would almost surely be released and almost surely would return to threaten and kill more Americans.”

Over the course of the nearly two-hour hearing, the first held in the Senate in five years, senators and witnesses raised plenty of other well-worn arguments. Guantánamo critics pointed to the high cost of keeping detainees incarcerated at the facility—$2.7 million a year per detainee. A former Bush administration Defense Department official argued that transferring detainees to U.S. prisons would allow them to spread their brand of “radical sharia,” or Islamic law, to the homeland.

What the hearing did not address—at all—were the practical steps that could be taken to follow through on President Obama’s renewed promise to shutter Guantánamo. And it was notable that no member of the Obama administration, which is largely responsible for developing a plan of action, testified at the hearing. (A Durbin aide said the administration was invited but declined to send a witness.)

Maintaining a low profile for the moment likely reflects a desire to duck some tough questions. Chief among them is whether the administration plans to use its existing authority to start transferring detainees out of Guantánamo. Of the 166 prisoners who remain in the camp, 86 have been cleared for release. And while Congress repeatedly has imposed onerous restrictions on repatriating or moving detainees to third countries, more recently it has provided waivers for the administration to bypass those limitations. Originally, Congress required certification from the secretary of defense that prisoners transferred out of Guantánamo would not engage in any future terrorist activity, an almost impossible standard to meet. Now that requirement can be waived so long as the receiving country can “substantially mitigate” the risk that the detainee will return to terrorism, a lower threshold.

The administration so far has not invoked its waiver authority to transfer detainees. But in the wake of Obama’s revived initiative to close Guantánamo, opponents of keeping the facility open have urged the administration to do so. in a new report, “Guantanamo: A Comprehensive Exit Strategy,” Human Rights First calls on the administration to “certify transfers and issue national security waivers to the fullest extent possible.” And there were signs that at least some in the administration were listening. Officials at the State Department and Justice Department are said to be in favor of a plan to begin transferring a small number of detainees using national security waivers. To start, it would likely involve detainees from countries, including Morocco and Algeria, that have demonstrated an ability to safely integrate terror detainees. In reality, it would take the White House to direct the secretary of defense to issue the waivers and begin the transfers.